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HHS > Civil Rights Home > For Providers > For Providers of Health Care & Social
Services > Regulatory Initiatives > Fact Sheet: Nondiscrimination in Health
Programs and Activities Proposed Rule Section 1557 of the Affordable Care Act

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FACT SHEET: NONDISCRIMINATION IN HEALTH PROGRAMS AND ACTIVITIES PROPOSED RULE
SECTION 1557 OF THE AFFORDABLE CARE ACT

The Department of Health and Human Services (HHS) has issued a proposed rule to
advance health equity and reduce disparities in health care. The proposed rule,
Nondiscrimination in Health Programs and Activities, revises the implementing
regulation for Section 1557 of the Affordable Care Act (ACA), and proposes
robust provisions that will be more effective in protecting people from
discrimination.

Section 1557 of the ACA prohibits discrimination on the basis of race, color,
national origin, sex, age, or disability in certain health programs or
activities and is one of the government’s most powerful tools to ensure
nondiscriminatory access to health care. In addition to proposing revisions to
the Section 1557 implementing regulation, this rulemaking also includes proposed
revisions to nondiscrimination provisions in Centers for Medicare & Medicaid
Services (CMS) regulations.

The Department is engaging in this proposed rulemaking to strengthen and
reinstate protections from discrimination in health programs and activities,
consistent with the statutory text of Section 1557, congressional intent, legal
precedent, and the Biden-Harris Administration’s priority of advancing equity
and civil rights and protecting Americans’ access to health care. The proposals
in this Notice of Proposed Rulemaking draw on extensive stakeholder engagement,
the Department’s enforcement experience, and developments in civil rights law.

While the Department is undertaking this rulemaking, both the statute and the
current regulation are in effect. If you believe that you or another party has
been discriminated against on the basis of race, color, national origin, sex,
age, or disability, visit the Office for Civil Rights (OCR) complaint portal to
file a complaint online.


SUMMARY OF THE PROPOSED RULE

Reinstates application to all Department of Health and Human Services’
administered health programs and activities.

The proposed rule applies the same nondiscrimination standards to the
Department’s health programs and activities as are required of federal funds
recipients. The 2020 Rule (85 Fed. Reg. 37160 (June 19, 2020)) limited the scope
of Section 1557’s nondiscrimination requirements to only those programs and
activities conducted by the Department under Title I of the ACA. The Department
believes that interpreting Section 1557 to cover all of the health programs and
activities administered by the Department is the best reading of the statutory
language, and the one that provides protection from discrimination to people in
more programs. This demonstrates the Department’s commitment to ensuring that
individuals are not subject to discrimination across the broad range of health
programs and activities it conducts, including but not limited to the Indian
Health Service, Centers for Medicare & Medicaid Services, and the National
Institutes of Health.

Clarifies the application of Section 1557 nondiscrimination requirements to
health insurance issuers.

The proposed rule, consistent with congressional intent and court precedent,
reinstates and strengthens application to health insurance issuers that receive
federal financial assistance. Recognizing the significant role health insurance
issuers play in the provision of health care, this proposed rule provides clear
nondiscrimination standards for the industry.

Aligns sex discrimination regulatory requirements with Federal court decisions.

The proposed rule codifies protections against discrimination on the basis of
sex as including discrimination on the basis of sexual orientation and gender
identity. These protections are consistent with the U.S. Supreme Court’s holding
in Bostock v. Clayton County - PDF, 140 S. Ct. 1731 (2020), and the Department’s
subsequent Federal Register Notice (86 Fed. Reg. 27984 (May 10, 2021)) that
Section 1557 would be enforced consistent with this decision that sex
discrimination includes discrimination on the basis of sexual orientation and
gender identity. In addition, the proposed rule clarifies that sex
discrimination includes discrimination on the basis of sex stereotypes; sex
characteristics, including intersex traits; and pregnancy or related conditions
including pregnancy termination.

Requires covered entities to have Section 1557 policies and staff training.

The proposed rule, for the first time, requires recipients of federal financial
assistance, the Department’s health programs and activities, and State Exchanges
to implement Section 1557 anti-discrimination policies and procedures to give
staff clear guidance on the provision of language assistance services for
limited English proficient (LEP) individuals, and effective communication and
reasonable modifications to policies and procedures for people with
disabilities. Covered entities will also be required to train relevant staff on
these policies and procedures. These requirements will help improve compliance
and reduce the need for enforcement.

Requires covered entities to provide notice of the availability of language
assistance services and auxiliary aids and services.

The proposed rule requires covered entities to provide notice of the
availability of language assistance services and auxiliary aids and services in
English and at least the 15 most common languages spoken by LEP persons of the
relevant state or states. These notices must also be provided in alternate
formats for individuals with disabilities who require auxiliary aids and
services to ensure effective communication. Covered entities would be required
to provide these notices on an annual basis, upon request, in prominent physical
locations, and in a conspicuous location on their websites. The proposed rule
also allows individuals to opt-out of receiving an individualized notice on an
annual basis.

Puts covered entities on notice of nondiscrimination requirements’ application
to use of clinical algorithms.

The proposed rule states that a covered entity must not discriminate against any
individual on the basis of race, color, national origin, sex, age, or disability
through the use of clinical algorithms in its decision-making. This provision is
not intended to hinder the use of clinical algorithms; but to prevent
discrimination given the recent increasing reliance on clinical algorithms in
health care decision-making.

Provides a clear process for raising conscience and religious freedom
objections.

The proposed rule provides a clear process by which recipients of federal
financial assistance from the Department can notify OCR of their belief that the
application of a specific provision or provisions of Section 1557 would violate
their rights under federal conscience or religious freedom laws. For the first
time, OCR clarifies that when it receives such a notification from a recipient,
it shall promptly consider those views in responding to any complaints or
otherwise determining whether to proceed with any investigation or enforcement
activity regarding that recipient’s compliance with the relevant provisions of
the regulation. Any ongoing relevant investigation or other enforcement action
regarding the recipient shall be held in abeyance until a determination is made
as to whether a recipient is exempt from compliance with, or entitled to a
modification of the application of, a provision of the rule. Additionally, the
rule provides that after receiving notice, if there is a sufficiently concrete
factual basis for doing so, OCR may at any time make a determination regarding
whether a recipient is wholly exempt from or should receive an exemption or
modification from certain provisions of the rule.

Clarifies that nondiscrimination requirements apply to health programs and
activities provided through telehealth services.

The proposed rule specifically addresses nondiscrimination in the provision of
health programs and activities through telehealth services. Telehealth is a
means by which covered entities provide their health programs and activities.
This provision clarifies that covered entities have an affirmative duty to not
discriminate in their delivery of such services through telehealth. This duty
includes ensuring that such services are accessible to individuals with
disabilities and providing meaningful program access to LEP individuals. Such
services would include communications about the availability of telehealth
services, the process for scheduling telehealth appointments (including the
process for accessing on-demand unscheduled telehealth calls), and the
telehealth appointment itself.

Interprets Medicare Part B as federal financial assistance.

The proposed rule announces the Department’s position that Medicare Part B is
federal financial assistance for the purpose of coverage under the federal civil
rights statutes the Department enforces. These include Title VI of the Civil
Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title IX of
the Education Amendments of 1972, the Age Discrimination Act of 1975, and
Section 1557 of the ACA. Medicare Part B funds meet the definition of federal
financial assistance under the law, as provided in the implementing regulations
for each of the aforementioned statutes. The Department believes that previous
rationales provided for the Medicare Part B exclusion are not the best reading
of the civil rights laws given the purpose and operation of the Medicare Part B
program.

Reinstates protections on the basis of gender identity and sexual orientation in
Centers for Medicare & Medicaid Services regulations.

The 2020 Rule amended ten provisions in the Centers for Medicare and Medicaid
Services (CMS) regulations, all of which cover at least some entities that are
also subject to Section 1557, to delete language that prohibited discrimination
on the basis of sexual orientation and gender identity. These provisions
included regulations governing Medicaid and the Children’s Health Insurance
Program (CHIP); Programs of All Inclusive Care for the Elderly (PACE); health
insurance issuers and their officials, employees, agents, and representatives;
States and the Exchanges carrying out Exchange requirements; agents, brokers, or
web-brokers that assist with or facilitate enrollment of qualified individuals,
qualified employers, or qualified employees; issuers providing essential health
benefits (EHB); and qualified health plan (QHP) issuers. CMS proposes to amend
these regulations in this Section 1557 proposed rule so that they again identify
and recognize discrimination on the basis of sexual orientation and gender
identity as prohibited forms of discrimination based on sex. In addition, CMS
proposes to amend its own regulations applying these protections in CHIP to also
apply to Medicaid fee-for-service programs and managed care programs. These
proposals are consistent with those elsewhere in this proposed rule and would
promote consistency across HHS programs by prohibiting discrimination based on
sexual orientation or gender identity.


PUBLIC COMMENT

The proposed rule seeks comment on a variety of issues to better understand
individuals’ experiences with health care discrimination and covered entities’
experiences in complying with federal civil rights laws. The comment period will
be open for 60 days for members of the public to provide comments on the
proposed rule. OCR will consider those comments as it drafts a final rule to
implement Section 1557.

The Department will also be conducting a Tribal consultation meeting on August
31, 2022 from 2:00 p.m. to 4:00 p.m. Eastern Daylight Time. To participate, you
must register in advance at
https://www.zoomgov.com/meeting/register/vJIsfu-rqzksEl2T8gUp_lDrWBqkU0223CY .

The NPRM may be viewed or downloaded at:
https://www.federalregister.gov/public-inspection/2022-16217/nondiscrimination-in-health-programs-and-activities.

The text of the regulation in English is available at
https://www.regulations.gov/. Translated summaries of the regulation will be
available soon at www.hhs.gov/ocr. If you need the regulation or summary in an
alternate format, please call (800) 368-1019 or (800) 537-7697 (TDD) for
assistance or email 1557@hhs.gov.

You can submit comments, identified by RIN 0945-AA17, electronically through
https://www.regulations.gov, or by mail or via hand delivery or courier to the
following address only: U.S. Department of Health and Human Services, Office for
Civil Rights, Attention: 1557 NPRM (RIN 0945-AA17), Hubert H. Humphrey Building,
Room 509F, 200 Independence Avenue SW., Washington, DC 20201.  

For more information, please go to OCR’s website at www.hhs.gov/ocr.

Content created by Office for Civil Rights (OCR)
Content last reviewed July 29, 2022



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